Duck, Duck, Duck, Goose!

Today's news of Flight 1549 is now all over the Internet. The plane lost its engines shortly after take-off from LaGuardia, and landed in the Hudson River. All passengers and crew were rescued, thanks to the flight's accomplished and valiant pilot, and, of course, to the FDNY and the other boats that made the emergency response.

I join all in expressing gratitude for the miraculous rescue.

It seems that the cause of the engine failure was bird ingestion. Specifically, a flock of Branta canadensis, commonly known as Canada Geese, crossed paths with the aircraft.

The Canada Geese are protected birds under the Migratory Bird Treaty Act. The problem is that most of the Branta canadensis in the New York area are no longer migratory, but have, for many generations, lived all of their lives here.

And, quite frankly, their numbers are too great for the health of the human population. There is, for example, a flock that congregates at the Courthouse of the New York Supreme Court of Nassau County, and they leave lots of their droppings there. And, within the past 10 years, a flock has taken up residence near the local school, pooping all over the soccer field.

I am not a sport hunter, and those who are would know more about this than I, but one needs all kinds of Federal and State licenses and permits to hunt Branta Canadensis.


According to a New York Daily News sidebar article to the Flight 1549 story,

" For years, Port Authority officials have tangled with animal activists about efforts to cut down the number of geese that live on Rikers Island near LaGuardia. Back in 2004, more than 400 geese were killed. By 2006, the number netted and gassed had dropped to 165. Animal activists have fought the effort, urging officials to find non-lethal methods to manage the population."

Rikers Island, for the untraveled and unread, is a land mass in the East River where the City of New York has located its major prison facilities. Amidst the current great budget deficit, why not use the Rikers Island flock of Branta canadensis to feed the inmates? Surely the culinary-minded can come up with some Canada Goose recipes.

Rest in Peace, Lt. Robert J. Ryan, Jr.

The Fire Department of the City of New York, which has already paid a very steep price for its collective excellence and dedication in protecting the city's populace, has lost another of its Bravest. Lt. Robert J. Ryan, Jr. fell in the line of duty while attempting to extinguish a fire in a Staten Island home. I, of course, proffer the all too usual condolences and regrets. My specific comments, other than those standard procedural sentiments, are as follows:


A. The posting of 16 November 2008 questions New York City's promotion policies for its uniformed services, including but not limited to posthumous promotions for those incurring line of duty deaths. This is, of course, an unpopular subject, but New York, like any other governmental unit, has the need for fiscal prudence, and also the need to appropriately reward/punish its employees for their performance. Oftentimes, these two imperatives are propelled on a collision course with one another, particularly in times such as this when the budget is exceedingly tight.

I do not know whether Lt. Ryan will be posthumously promoted to Captain, and do not now pass any judgment as to whether he should or should not be so promoted. What I do assert is that the decision, one way or the other, ought to be based upon the particular facts and merits of the individual case, whatever they happen to be.


B. Reportedly, Lt. Ryan was seriously burned in 2005 while responding to a fire. He worked hard to recover and to rehabilitate himself for more than a year, so that he could once again join the ranks of the active FDNY. Plenty of governmental employees have no doubt retired on disability for injuries which are superficial in comparison with Lt. Ryan's 2005 burns. Lt. Ryan surely could have gone into retirement and collected his monthly check while finding gainful employment in some sinecure position (or, perhaps, totally retired altogether). He affirmatively chose to make a comeback with FDNY. While this should not be dispositive in any posthumous promotion decision, it certainly should be among the many relevant factors.

C. Lt. Ryan apparently did work to reconstitute his firefighting unit following its personnel losses in the wake of the September 11th attack. This could not have been as easy as it sounds.


D. It is now reported that the occupant of the house which collapsed upon Lt. Ryan escaped unharmed. I know nothing about this person, but fervently hope that he or she is worth the trade, and will, in his or her own way, make positive contributions to society, just as Lt. Ryan did in his own way.



Rest in Peace, Lt. Ryan. Your family and colleagues have every reason to be proud of you!

Beddia, Graffagnino and Palsgraf

New York City firefighters Joseph Graffagnino and Robert Beddia died while fighting a blaze at the former Deutsche Bank Building, across the street from the World Trade Center site and abandoned since the September 11 2001 Muslim terrorist attack. Due to the asbestos and other toxic substances which permeated the DBB following the September 11th attack, the demolition of the DBB has had to proceed slowly.

There now are some well-founded contentions that the standpipe in the DBB had been removed and/or was otherwise nonfunctional, thereby leaving the firefighters without a water supply as they tried to extinguish the fire.

Apparently, many of the FDNYers and others who attended the respective funerals for Graffagnino and Beddia are of the opinion that the two FDNYers who fell in this latest Deutsche Bank Building incident ought be counted as FDNY fatalities 344 and 345 from the September 11th terrorist attack on the World Trade Center.

Firefighters and law enforcement officers in New York and most other places have grown quite adept at playing upon the public sympathies to exact monetary benefits from the public fisc. This is certainly not to the firefighters' or police officers' discredit; the public officials who negotiate with firefighters (and all other public servants) must proactively assert the public interest in the negotiations, and too many public officials have been remiss in this duty. Including Beddia and Graffagnino among FDNY's 9/11 casualties does have fiscal implications which ought not be totally ignored by the New York City administration.

Dropping all of this very heavy emotional baggage, is it stretching things a bit far to count the tragic deaths of Firefighters Beddia and Graffagnino among those caused by the terrorist attack?

The one memorable case from law school is Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). The Palsgraf opinion was written by Judge Cardozo when he sat in the center spot of the New York Court of Appeals, and is standard fare for law school Torts courses.

The Palsgraf facts are as follows: Two men ran to catch a train as it pulled out of the station. One of the two men jumped aboard the train without incident, while the second needed to be helped aboard by two Long Island Railroad conductors. A package carried by the second man fell to the tracks. The package contained fireworks, and exploded when it fell. The explosion caused some scales to fall upon the plaintiff, Helen Palsgraf, causing her injuries.

[N.B. The incident was reported in the New York Times the day after it occurred: "Bomb Blast Injures 13 in Station Crowd," N.Y. Times, August 25, 1924.].

Cardozo's opinion, in a nutshell, was that possibility of the scales falling upon Mrs. Palsgraf was so far removed that even "the most cautious mind" would not have apprehended it. Because Mrs. Palsgraf's injuries were so unforeseeable and attenuated, there was no liability on the part of the Long Island Railroad.

But Palsgraf was about negligence. The World Trade Center attack was not negligent, it was intentional. The terrorist attackers specifically intended to inflict widespread physical, economic and emotional damage upon the City of New York and the United States of America and the public, damage occurring not only on September 11th, but continuing for a considerable time in the future. The damage to the Deutsche Bank Building, and the deaths of Beddia and Graffagnino, then, were within the scope of contemplation by the terrorist attackers.

Under such circumstances, there is much to support the argument that Bob Beddia and Joe Graffagnino were indeed victims of the September 11th terrorist attack. May they rest in peace!

Glenn Winuk update

On 25 September 2006, the posting to this Blog discussed Glenn Winuk, the volunteer firefighter/EMT who died while performing rescue operations at the World Trade Center on September 11, 2001.

The 25 September 2006 posting was a bit skeptical and chary regarding the motives of Winuk's surviving family members in trying to qualify for survivors' death benefits under the Public Safety Officers’ Death Benefits Act. This is a function of my training and experience with the IRS, and not on account of any character flaws that the Winuk family members may possess. An IRS agent who cannot "think dirty" cannot effectively enforce the tax laws.

And, if Glenn's brother Jay is to be believed (his statement is, in fact, extremely plausible), the Winuk family has spent more money pursuing their legal remedies than they will collect from the death benefits. Notwithstanding my initial caution in the 25 September posting, it seems that the Winuk family really was in the fight for the principle.

It is with much gratitude that I now report the Winuk family's victory in the Court of Federal Claims. The opinion by Judge Marian Blank Horn makes for a good read in memory of Glenn J. Winuk, and also holds a magnifying glass over the miniature minds of the bureaucrats who fought tooth and nail to deny Glenn his rightful status as a public safety officer killed in the line of duty at the World Trade Center. When it comes to tending to the public treasury, some initial skepticism is healthy and appropriate, but, as Judge Horn noted:

"Chairman Biancanello and Chief Lottes of the Jericho Fire District properly certified that Glenn Winuk should be considered to have been a public safety officer killed in the line of duty during the 9/11 tragedy. That should have been the end of it."

Hopefully, the Department of Justice will not appeal Judge Horn's well-reasoned and well-substantiated decision, so that Glenn Winuk's family can hold their heads up high in full knowledge that Glenn's heroic actions are appreciated, and that Glenn Winuk can have his hard-earned and dearly paid rest in peace.